An Interview With Marjorie Cohn About Targeted Killings

Posted on Feb 8, 2013

This interview with legal scholar and editor Marjorie Cohn was heard on Flashpoints, a weekday show on Pacifica Radio.

DB: You say the recent memo coming out of the Justice Department on the administration’s plans to keep up its targeted assassinations and expand the program runs afoul of international and U.S. law. Please explain.

MC: The White Paper allows the government to kill a U.S. citizen who is not on the battlefield, if some high government official who is supposedly informed about the situation thinks that the target is a senior Al-Qaida leader who poses an imminent threat of a violent attack against the United States. So how do they define “imminence”? Well, it doesn’t require any clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. So it completely dilutes this whole idea of imminent threat. Under well-established principles of international law and the U.N. Charter, one country can use military force against another only in self-defense. But under the Caroline case, which is the gold standard here, the “necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.” That means we are going to be attacked right away and we can use force. But the very nebulous test that the White Paper lays out even allows the targeted killing of somebody who is considered to be a “continuing” threat, whatever that means. The most disturbing part of it says that US citizens can be killed even when there is no “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” So we have a global battlefield, where if there is someone, anywhere, who might be associated with Al-Qaida, according to a high government official, then Obama can authorize (it’s not even clear Obama himself has to authorize these targeted killings, these drone attacks) on Terror Tuesday (thanks to the New York Times expose several months ago) who he is going to kill after consulting with John Brennan. John Brennan, of course, is his counterterrorism guru who is up for confirmation to be CIA director. Very incestuous. John Brennan has said that targeted killings constitute lawful self-defense.

One of the most disturbing things here is the amassing of executive power with no review by the courts, no checks and balances. So the courts will have no opportunity to interpret what “imminence” means, or what “continuing” threat means. The White Paper cites John Yoo’s claim that courts have no role to play in what the president does in this so-called War on Terror where the whole world is a battlefield. I say so-called War on Terror because terrorism is a tactic. It’s not an enemy. You don’t declare war on a tactic. And the White Paper refers to Yoo’s view that judicial review constitutes “judicial encroachment” on the judgments by the president and his National Security advisors as to when and how to use force. The White Paper cites Hamdi v. Rumsfeld which says the president has the authority to hold U.S. citizens caught on the battlefield in Afghanistan as enemy combatants. But in Hamdi, the Supreme Court stated that a U.S. citizen who is being detained as an enemy combatant is entitled to due process. Due process means an arrest and a fair trial. It doesn’t mean just taking him out with a drone. Also, there’s another interesting passage in this White Paper. It says “judicial enforcement [a court reviewing these kill orders of the executive] of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.” Inherently predictive. Does that mean that the court can’t review decisions made with a crystal ball because it’s too mushy? I don’t know. Certainly courts are competent to make emergency decisions under FISA, the Foreign Intelligence Surveillance Act. The FISA Court meets in secret and authorizes wiretaps requested by the executive branch. Courts can do this. Courts can act in emergencies to review and check and balance what the executive is doing. That’s what our Constitution is all about.